Tuesday, 2 February 2021

Whether Tenant Can Dictate Adequacy Of Space Required By Landlord For Proposed Business Venture?

 We have considered the submission of the learned

counsel for the parties. The tenants do not challenge the

NRI status of the landlord but they contend that the

space available with the landlord would be adequate for

the proposed furniture business and there is no need to

seek eviction of the respondents, from their respective

shops.

11. On the above aspect, it is not for the tenant to

dictate how much space is adequate for the proposed

business venture or to suggest that the available space

with the landlord will be adequate. Insofar as the

earlier eviction proceeding, the concerned vacant shops

under possession of the landlords were duly disclosed,

but the case of the landlord is that the premises/space

under their possession is insufficient for the proposed

furniture business. On the age aspect, it is seen that

the respondents are also senior citizens but that has not

affected their desire to continue their business in the

tenanted premises. Therefore, age cannot be factored

against the landlords in their proposed business.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 231-232 OF 2021


BALWANT SINGH @ BANT SINGH & ANR.  Vs SUDARSHAN KUMAR & ANR.

Dated: JANUARY 27, 2021

1. Leave granted.

2. The landlords/appellants challenge the judgment dated

6.3.2020 of the High Court of Punjab and Haryana

whereunder the respondents/tenants were granted leave to

contest the eviction proceedings, overturning the

decision of the Rent Controller, Khanna, whereby leave to

contest was refused to the tenants.

3. The appellants are the owners of the premises and the

two shops therein for which, the eviction proceedings

were initiated against the tenants. The subject shops on

the ground floor of the building were situated in the

urban area of Khanna. The appellants are Non-Resident

Indians (NRI) within the meaning of Section 2(dd) of the

East Punjab Urban Rent Restriction Act, 1949 (hereinafter


referred to as “the Act”). They sought immediate recovery

of possession of the rented premises by invoking the

provisions of Section 13B read with Section 18A of the

Act. The landlord moved the Rent Controller claiming

that the appellant No. 1 desires to start the business of

sale, purchase and manufacture of furniture and for the

proposed business, the property already in possession of

the landlord, is insufficient. It was also indicated

that after shops in question are vacated, the building

will be renovated as per the requirement of the proposed

business.

4. On receipt of notice, the two tenants filed identical

application seeking leave to contest, as provided under

Section 18A(5) of the Act. The tenants alleged that the

appellants have failed to disclose their past litigation

with M/s Sudarshan Interior Decorators qua Rent

Application No. 6/2005 and also the other litigation with

Diwan Chand qua Rent Application No. 32/2005. As the

landlord have secured possession of the two shops through

those litigations, it was projected that the landlords

are in occupation of four shops adjoining each other and

in that available space, the furniture business can be

conveniently conducted.


5. In their reply to the pleadings of the tenants, the

appellants contended that there is no concealment of

necessary facts in the eviction petitions, inasmuch as

the concerned proceedings were decided much prior to the

institution of the present proceedings under Section 13B

of the Act. It was further stated that the shops in

possession of the landlords were disclosed but the space

is insufficient for the proposed business. Therefore,

the shop premises in occupation of the present tenants

are needed to be secured.

6. The Rent Controller considered the rival submissions

and noted that the three necessary ingredients for

initiating proceedings under Section 13B of the Act were

satisfied by the appellants. Firstly the landlord is NRI,

secondly, the landlord has returned to India; and

thirdly, the landlord has been the owner of the property

for five years. The relationship of landlord and tenant

was also found between the contesting parties. It was

further noticed that the previous eviction proceedings

against M/s. Sudarshan Interior Decorators and against

Diwan Chand was filed under Section 13 and not under

Section 13B of the Act and since they were decided much

earlier, non-disclosure of those proceedings will not


affect the merit of the present proceedings, under

Section 13B of the Act. The Rent Controller rejected the

objection of the tenants that a portion of the premises

would be sufficient for the proposed business.

7. Aggrieved by the decision of the Rent Controller

refusing leave to contest, the tenants filed separate

Revision Petitions before the High Court to challenge the

orders of the Rent Controller. The High Court in the

impugned judgment had focused on the fact that the

landlord had earlier recovered possession of two

adjoining shops through proceedings initiated under

Section 13 of the Act and those shops are lying vacant.

The Court also noted that the first floor of the tenanted

premises is let out to a bank for which no eviction

petition was filed. It was accordingly held that leave

to contest should be granted to the tenants. The order

passed by the Rent Controller was then set aside and

further proceeding was directed before the Rent

Controller with grant of leave to contest to the tenants.

8. Assailing the legality of the judgment of the High

Court, Mr. Neeraj Kumar Jain, learned Senior Counsel

contends that when there is no dispute that the

appellants are covered within the meaning of “Non-


Resident Indian” under Section 2(dd) and required the

premises (under their ownership for over five years) for

business needs, the tenant cannot seek leave to contest,

inasmuch as, the right to recover immediate possession is

granted to NRI landlords under the special mechanism of

Section 13B and Section 18A of the Act. Mr. Jain refers

to the appended site map of the vacant shops to show that

it is for the landlord to assess his need and space for

the proposed business and the tenants cannot contest

eviction on their understanding of what would be adequate

for the appellant’s business. Since the vacant

possession of the other two shops is clearly indicated in

the proceedings initiated before the Rent Controller, it

is argued that there is no concealment and the High Court

should not have allowed the Revision in favour of the

tenants primarily on the ground of the said two vacant

shops.

9. Per contra Mr. Manoj Swarup, learned Senior Counsel

refers to the site map (Annexure R-10), to argue that the

landlord has sufficient space available in their

possession for the proposed furniture business and

therefore, the bona fide need of the landlord is rightly

questioned by the tenants. The non-disclosure of the two

earlier eviction proceedings is also highlighted by the

learned Senior Counsel to contend that the right to

contest was rightly ordered in favour of the tenants in

the present eviction proceedings. It is next projected

that appellant No. 1 holds Canadian citizenship and

considering his age, the proposed business venture should

not be accepted as a bona fide need, of the landlords.

10. We have considered the submission of the learned

counsel for the parties. The tenants do not challenge the

NRI status of the landlord but they contend that the

space available with the landlord would be adequate for

the proposed furniture business and there is no need to

seek eviction of the respondents, from their respective

shops.

11. On the above aspect, it is not for the tenant to

dictate how much space is adequate for the proposed

business venture or to suggest that the available space

with the landlord will be adequate. Insofar as the

earlier eviction proceeding, the concerned vacant shops

under possession of the landlords were duly disclosed,

but the case of the landlord is that the premises/space

under their possession is insufficient for the proposed

furniture business. On the age aspect, it is seen that

the respondents are also senior citizens but that has not

affected their desire to continue their business in the

tenanted premises. Therefore, age cannot be factored

against the landlords in their proposed business.

12. The Rent Controller in denying right to contest to

the tenants and ordering handover of vacant possession to

the landlord had noted that the landlord had returned to

India and required the premises for his bona fide need

and accordingly, the summary proceedings under Section

13B for recovery of possession of the entire building was

found to be justified. It was also adverted that the

present proceedings under Section 13B is the first one

filed by the landlord to secure eviction and the earlier

proceedings was under Section 13 of the Act. Moreover,

there is no bar for a Non-resident Indian to get a

building of choice vacated, under Section 13B of the Act.

13. On consideration of the above aspects, the genuine

need of the appellants to secure vacant possession of the

premises for the proposed business is found to be

established. According to us, the adequacy or otherwise

of the space available with the landlord for the business

in mind is not for the tenant to dictate. The special

procedure for NRI landlord was deliberately designed by

the Legislature to speedily secure possession of tenanted

premises for bona fide need of the NRI landlords and such

legislative intent to confer the right of summary

eviction, as a one time measure cannot be frustrated,

without strong reason.

14. Having regard to the contentions raised by the

tenants to oppose the Section 13B applications, we feel

that the tenants have failed to provide adequate reason

to secure the right to contest the summary proceedings

and they should not be allowed to widen the scope of the

limited defense under Section 13B. To fulfil their bona

fide requirement, the landlords have availed only one

opportunity under the summary procedure of Section 13B

and their business requirement is not seriously contested

by the tenants. Moreover, the required safeguard measures

to prevent misuse of the special provisions are also

found to be satisfied and that is why the leave to

contest was denied to the tenants.

15. In view of the foregoing, we have no hesitation in

setting aside the impugned judgment and order of the High

Court and say that the tenants have failed to make out

any case to contest the applications of the NRI

landlords.

16. The Rent Controller as far back as on 13.2.2009, had

allowed three months’ time to the tenants to vacate and

handover possession of the concerned premises but the

landlords are yet to secure possession. Be that as it

may, since the premises are commercial in nature, subject

to all rental obligation, we feel that the respondents be

allowed time until 31.12.2021 to handover vacant physical

possession of the premises. It is ordered accordingly.

This is subject to filing of the usual undertaking before

this Court, within three weeks from today.

17. The appeals are accordingly allowed without any order

on cost.

………………………………………………J.

[SANJAY KISHAN KAUL]

………………………………………………J.

[DINESH MAHESHWARI]

………………………………………………J.

[HRISHIKESH ROY]

NEW DELHI

JANUARY 27, 2021


Print Page

No comments:

Post a comment